22 Mont. 110 | Mont. | 1899
Plaintiffs, (appellants here) sued the defendants (who are the respondents) to enjoin certain trespasses upon the Never Sweat Lode Claim, and to enjoin them from asserting title to any portion of said claim, the ownership and possession of which plaintiffs allege to be in themselves. Defendants denied the ownership and possession of plaintiffs, and the validity of the Never Sweat location, set up their own title to the Yukon Lode Claim, and prayed that the same be quieted in themselves. The trial was had before a jury, and testimony was heard on both sides. At the conclusion of the plaintiff’s rebuttal testimony, the defendants moved the court to instruct the jury to find in defendants’ favor. The court granted the motion. Yerdict and judgment were rendered m defendants’ favor. Plaintiffs appeal from the judgment and an order overruling a motion for a new trial!
The ground of the defendants’ motion to direct a verdict was that the plaintiffs had failed to make any proof of a compliance with the statute in respect to disclosing a well-defined crevice at the point of discovery of the Never Sweat claim for the depth of 10 feet. The court, however, did not sustain the motion upon the ground included therein, but held that defendants were entitled to a verdict because the plaintiffs were bound strictly by their location notice, and that, the plaintiffs having infringed upon the defendants’ claim, they must be held to the lines of their location notice, and could not “get off onto some adjoining claimant’s claim;” and that, if they made a mistake, the prejudice lies at their door, and not at the door of the other parties upon whose rights they have inrringed. To make the ruling of the court intelligible, and state the case on its merits, it is necessary to briefly recite what the evidence tended to show:
In August, 1897, W. H. Sanders, Henry Knight and J. W. Knight, three of the plaintiffs, were working and prospecting in the vicinity of the ground in controversy. They were co-
The respondents contend that there was no sufficient discovery made of any mineral, lode, or vein at the time the Never Sweat was located, and for that reason the Never Sweat location was void. We are advised, however, upon argument in this Court, that the learned Judge of the District Court did not pass upon this question raised by the motion of the respondents. It is here conceded that his decision was based solely upon the right of the locator of a mining claim to swing his claim within the statutory period of 90 days after the date
Passing, then, the question of a sufficient discovery, we address ourselves to the requirements concerning the marking of mining claims so that the boundaries can be readily traced, and to a consideration of the demands of the Federal statutes bearing upon the possessory rights to mining locations.
Section 2324, Rev. St. U. S., provides: “The location
£ ‘What are the two chief requirements of the statutes as far as the possessory right is concerned? (1) Discovery; (2) the marking of the claim upon the ground so that the boundaries can be readily traced. The first requirement is made for the benefit of the United States, so that the land cannot be acquired under this law until its character is first ascertained to be mineral; the second is made in order that those going upon the ground may know that others have acquired and claim title thereto. Certainly, these steps are very simple; the intricacies are those found by the courts of the states and territories wherein mineral lands are situated. ’ ’
We find certain statutory provisions included in the Codes, consistent, apparently, with the laws of the United States, and supplementary thereto. The portions of the statute pertinent to the case at bar are as follows:
Sec. 3610 (Political Code). “Any person, a citizen, etc., * * * who discovers a vein or lode bearing gold, silver, etc., * * * may locate a claim upon such vein, lode or deposit, by defining the boundaries of the claim in the manner hereinafter described, and by posting a notice of such location at the point of discovery, which notice must contain:
*118 “1. The name of the lode or claim.
‘ ‘2. The name of the locator or locators.
“3. The date of the location.
£ ‘4. If a lode claim, the number of lineal feet claimed in length along the course of the vein each wa'y from the point of discovery, with the width on each side of the center of the vein, and the general course of the vein or lode as near as may be.”
Sec. 3611. “Before the expiration of ninety days from the date of posting such notice upon the claim, the locator or locators must sink a discovery shaft upon the lode or claim to a depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper if necessary to show a well defined crevice or valuable deposit. Its equivalent in work must be done upon placer claims. A cut, a crosscut or a tunnel, which cuts a lode at the depth of ten feet below the surface, or an open cut of at least ten feet in length along the lode from the point where the lode may be in any manner discovered, is equivalent to a discovery shaft. The locator or locators must define the boundaries of his or their claim by marking a tree or rock in place, or by setting a post or stone at each corner or angle of the claim, ’ ’ etc.
Sec. 3612. “Within ninety days of the date of posting the location notice upon the claim, there must be filed in the office of the county clerk of the county in which the lode or' claim is situated, a declaratory statement, which must contain:
“1. The name of the lode or claim.
‘ £2. The name of the locator or locators.
‘ ‘3. The date of location and such description of the location of said claim with reference to some natural object or permanent monument as will identify the claim.
£ £4. If a lode claim, the number of lineal feet claimed in length along the course of the vein each way from the point of discovery, with the width on each side of the center of the vein, and the general course of the lode or vein as near as may be.
“5. If a placer or mill site claim, the number of acres or superficial feet claimed.
*119 “6. The dimensiens and location of the discovery shaft, or its equivalent, sunk upon lode or placer claims.
‘ ‘7. The location and description of each corner, with the markings thereon.
£ ‘Such declaratory statement must be verified by the oath of the locator, or one of the locators, and in case of a corporation by an officer thereof duly authorized to act. ’ ’
Appellants’ position is that, under these State statutes a claimant has 90 days after posting notice of location within which to define the boundaries of his claim, and that the course of the lead as given in the posted notice is but preliminary, and not binding upon the locator. Respondents, on the other hand, insist that, although a locator has 90 days within which to complete his location, nevertheless the statute does not and could not extend the time within which a locator must marie the ground so that its boundaries can be readily traced, as required by the United States statute — in other words, a distinction is sought to be drawn between the Federal statute as to marking the ground so that the boundaries of the claim can be traced, and the State statute allowing 90 days within which to stake the claim, record the notice, and perfect the location.
Taking up the statutes quoted, it will be seen that to initiate and complete a mining location five acts must be performed:
1. There must be a discovery.
2. There must be a definition of boundaries, as required by Section 3611.
3. There must be a posting of notice at the point of discovery.
4. There must be development within 90 days from the date of posting the.required notice.
5. There must be a declaratory statement filed in the office of the county clerk.
The first essential was performed so far as the case now presents itself; and, it having been complied with by immediately thereafter placing at the point of discovery a notice as
In the interpretation of statutes substantially like ours, we have the repeated adjudications of both Federal and State Courts, the more important of which we here collate:
In 1874 the Legislature of Colorado enacted that the discoverer. of a lode should have 60 days from the time of the uncovering or disclosing a lode to sink a discovery shaft thereon, and should have three months in which to record his claim by a location certificate; (Mills’ Ann. St. Secs. 3150, 3155.) Our statutes are generally similar to thé earlier laws of Colorado. (Morrison’s Mining Rights, p. 25.)
In Erhardt v. Boaro, (decided in 1881) 8 Fed. 692, the construction of the Colorado statutes came before the Circuit Court of the United States for the District of Colorado. The case there was this: Plaintiffs, while prospecting, discovered mineral, and set up their discovery stake, containing the name of the Hawk Lode, the date of the discovery, the name of the discoverers, and other matters, substantially as required by law. Thirteen days thereafter, the defendants pulled up the stake, threw it away, took possession, went to work in the same hole, and, having sunk the shaft to the required depth, made a location of the claim. The plaintiffs there contended that they were the discoverers of the lode, and that they had 60 days under the law in which to complete the sinking of their prospect shaft and make their formal
‘ 'The law of the State gives sixty days after making discovery of mineral in which to sink a shaft ten feet in depth. The main object of the sixty days possession, it seems to the ■court, must be to allow time to discover the course of the lode, in order that the location may be made thereon. Counsel for defendants made an ingenious argument to show that the locator during those sixty days, to hold his right, must remain in continuous actual possession of the ground. The ■court does not so hold. If the discoverer put up a stake at the discovery, giving the name of the lode, date of discovery, and notice of his intention to locate the claim, this is equivalent to actual possession. Otherwise, the statute ¡serves no useful purpose. The intention of the statute must be that the setting up of the discovery stake, with the notice thereon, as required, is equivalent to actual possession for the sixty days, within which he may proceed to the next step, to-wit: ■ Sink the discovery shaft to the depth of ten feet, have survey made, mark the lines and make formal location. ’ ’
The Supreme Court of the State of Colorado, in Armstrong v. Lower, 6 Colo. 581, in 1883, used the following language:
“Under the Federal and State statutes, two kinds of possession of mining ground are recognized: First, where the miner, by virtue of work and improvements upon a tract of mineral land and occupancy thereof, holds the same independent of location statutes against one having no better right; .secondly, where, after discovering a vein, the miner undertakes to avail himself of the benefits of the location statutes. The law gives him possession of his entire claim as marked ¡upon the surface for the period of ninety days from the date of discovery, provided he post his discovery notice and, within sixty days next after such date, sink his discovery*122 shaft. Having perfected his location by a full compliance with the requirements of the statutes, his possession of the entire claim remains until he does or omits to do something which, in law, amounts to an abandonment thereof. ’ ’
Erhardt v. Boaro, supra, was determined by the Supreme Court of the United States on appeal (113 U. S. 527, 5 Sup. Ct. 560), in 1885, and the views that had been expressed by Justice Miller from the Circuit Court were affirmed through Justice Field. The Hawk Lode, involved in that case, was-claimed by the following notice, posted at the point of discovery :
£ ‘Hawk Lode.
“We, the undersigned, claim 1500 feet on this mineral-bearing lode, vein or deposit. Dated June 17, 1880.
“Joel B. Erhardt, 4-5ths; Thomas Carroll, l-5th.”
After holding that the notice on the stake, placed at the-point of discovery, contained a sufficient specification or description of the ground claimed by the locators, the Court expressly held that the statute of the United States allows a discoverer to locate a claim upon a lode or vein to the extent of 1500 feet, and that Erhardt’s notice informed all persons subsequently seeking to excavate and open the lode or vein that, the locators claimed all that the law permitted them to take. The notice was regarded as indefinite, simply, however, in not. stating the number of feet claimed on each side of the discovery point, but that as a notice of discovery and original' location, it was sufficient.. The Court goes on to say:
‘ ‘Greater particularity of description of a location of a mining claim on a lode or vein could seldom be given until subsequent excavations have disclosed the course of the latter. These excavations are to be made within sixty days after the discovery. Then the location must be distinctly marked on the ground, so that its boundaries can be readily traced and, within one month thereafter — that is, within three months from the discovery — a certificate of the location must be filed for record in the county in which the lode is situated, containing the designation of the lode, the names of the locators.*123 the date of the location, the number of feet claimed on each side of the center of the discovery shaft, the general course of the lode and such a description of the claim, by reference to some natural object or permanent monument, as will identify it with reasonable certainty. (Rev. St. U. S., Sec. 2321; Gen. Laws Colo., Secs. 1813, 1811.)
‘ ‘But during the intermediate period, from the discovery of the lode or vein and its excavation, a general designation of the claim by notice posted on a stake placed at the point of discovery, such as was posted by Carroll, stating the date of the location, the extent of the ground claimed, the designation of the lode and the names of the locators, will entitle ■them to such possession as will enable them to make the necessary excavations and prepare the proper certificate for record. The statute of Colorado requires that the discoverer before a certificate of location is filed for record shall, in addition to posting the notice mentioned at the point of discovery, sink a shaft upon the lode to the depth of at least, ten feet from the lowest part of such shaft under the surface or deeper if necessary to show a defined crevice, and to mark the surface boundaries of the claim. Before this work could be done by the plaintiff and his co-locator, the ground claimed by them was taken possession of by the defendants; the stake at the point of discovery, upon which the notice was posted, was removed; and Carroll was thereby, and by threats of violence, prevented from re-entering upon the premises and completing the work required to perfect the location and prepare a certificate for record — at least the evidence tended to establish these facts. If they existed — and this was a question for the jury — the plaintiff was entitled to recover possession of the premises. To the extent of seven hundred and fifty feet on the course of the lode on each side from the point of discovery, he and his co-locator were entitled to protection in the possession of their claim. They did not lose their right to perfect their location and perform the necessary work for that purpose, by the wrongful intrusion upon the premises, and by*124 threats of violence if they should attempt to resume possession. As against the defendants, they were entitled to be reinstated into the possession of their claim. They could not be deprived of their inchoate rights by the tortious acts of others; nor could the intruders and trespassers initiate any rights which would defeat those.of the prior discoverers.”
Further on in the opinion it is laid down that, whenever preliminary work is required to 'define and describe the claim located, the first discoverer must be protected in the possession of the claim until sufficient excavations and development can be made so as to disclose whether a vein or deposit of such richness exists as to justify work to extract the metal. “Otherwise, ’ ’ say the Court, “the whole purpose of allowing the free exploration of the public lands for the precious metals would in such cases be defeated and force and violence in the struggle for possession, instead of previous discovery, would determine the rights of claimants. ’ ’ And, as meeting the argument of respondents’ counsel in the case under consideration, that the law§ of the-United States require the excavations necessary to enable the locator to prepare and record a certificate to be made directly after his discovery, the Court certainly held that the Federal laws do not prescribe any time in which such excavations and record shall be made, but say that that is left to the legislation of the State, which in Colorado prescribed at that time 60 days for the excavations upon the vein from the date of discovery, and 30 days afterwards for the preparation of the certificate and filing.
Again, this case of Erhardt v. Boaro refutes that portion of the respondents’ argument wherein it is said that the plaintiffs’ location of the Never Sweat was for speculative purposes, and made without discovery, with a view to profit by the explorations and discoveries of the defendants. Justice Field said that if there is a discovery of the presence of the precious metals in the location, or in such proximity to it as to justify a reasonable belief in their existence, “then protection will be afforded to the locator to make the excavations and prepare the proper certificate for record. ’ ’
‘fSuch location often precedes any extended explorations, and is therefore made without accurate knowledge of the course and direction of the vein. When a vein has been discovered, the rules of miners, and the legislative regulations of mining states and territories, generally allow some specified time for explorations before the location is definitely marked. But miners discovering a lode are sometimes in such haste to locate-their claim, and mark its extent and boundaries on the surface, that they omit to make sufficient explorations to guide them aright in measuring the ground and fixing its end lines. Hence efforts are not infrequently made to change those lines when the true course and direction of the vein are ascertained by subsequent developments. ”
After discussing the difficulty in applying the statutes of the United States providing for the extent of the right of the possession and enjoyment of all the surface included within the lines of mining locations, it was remarked:
‘ ‘The remedy must be found, until the statute is changed, in carefully making the location, and in postponing the marling of its boundaries until explorations can be made to ascertain, as near as possible, the course and direction of the vein. In Colorado the statute allows for this purpose 60 days after notice of the discovery of the lode. Then the location must be distinctly marked on the ground, and 30 days thereafter are given for the preparation of the proper certificate of location to be recorded. (Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560.)”.
This case thoroughly affirms so much of the Erhardt v. Boaro decision as implied the allowance of 60 days given by the State statute for the marking of the boundaries until explorations could be made to ascertain, as near as possible, the course and direction of the vein, before distinctly marking the location on the ground.
‘ ‘To • hold that the miner, as soon as he discovers a lode, must immediately stake the territory which he is entitled to claim thereon, in order to protect it from the invasion and claims of other persons learning of his find, would be an unreasonable, if not an impossible, requirement. An attempt to do so would result, in many cases, in leaving the main portion of the lode outside the staked boundaries. The object of the statute in'giving 60 days for sinking the discovery shaft was evidently to afford the miner time to sink his shaft, and to •ascertain the true course of his lode, when he would be qualified to mark its boundaries on the surface. When the legislative intent is clear, or can be reasonably inferred, it is held to be the duty of the courts to so construe the statute as to render it effective, if possible to do so under the rules of statutory construction. (Simmons v. Powder Works, 7 Colo. 285-289, 3 Pac. 420.) To hold that the claim is protected throughout its whole extent, during this period, from invasion and adverse claims, by a notice which, in addition to the statutory requirements, shall specify the extent of territory claimed along the vein on both sides of the point of discovery, is both reasonable and equitable. It is likewise consistent with the spirit and policy of the statute, and a construction which renders it effective. Such a notice, • properly made and posted, is an appropriation of the territory specified therein for the period of 60 days. It has been repeatedly held that only the unappropriated mineral lands of the United States are open to exploration and location. No one can therefore lawfully enter upon the territory so claimed, during the period named, for the purpose of initiating a claim thereto; and it necessarily and logically follows, from an application of the same rules and principles, that no one, during this period, can stand out-1 side such appropriated territory, and in any manner initiate a claim thereto capable of being rendered valid in the future by the happening of fortuitous circumstances. ’ ’
The statutes of South Dakota (Pol. Code, Comp. Laws Dak.
Prior to these several last referred to decisions, the case of Newbill et al. v. Thurston et al., 65 Cal. 419, 4 Pac. 409,
This same ground involved in the Newbill case, later on, in 1893, became the subject of a controversy in the Federal courts and we find the questions involved discussed in Doe v.
“Newbill was the first discoverer of the ground in question. True, upon the day. of its discovery — March 26, 1881 —he did not establish monuments around the exterior boundaries of the claim; and those monuments were not marked at the time Warden and Yager located the Mammoth claim, on the 6th of April, 1881. But the notice on the stake placed by Newbill at the point of his discovery notified Warden and Yager, and every one else, that Newbill had located and claimed the vein for 1,000 feet in a northwesterly direction and for 500 feet in a southeasterly direction, from the discovery stake, with 300 feet on each side thereof. A less definite notice was held sufficient to protect the locator against the acts of subsequent locators by the Supreme Court in the -case of Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560.”
In California at that time there appeared to be no mining rules or regulations fixing the time within which locators should establish the exterior boundaries of their claims; but Judge Ross held that locators should be allowed a reasonable time, and that it had not expired when the defendants went upon the ground that had been claimed by Newbill. “They then saw,” continues the Court, “and should have read New-bill’s notice of March 26th, claiming the vein on which it was posted for 1,000 feet northwesterly and 500 feet southeasterly of his discovery monument, together with 300 feet on each side of it, and claiming the reasonable time of twenty days within which to mark the exterior boundaries of his claim. Warden and Yager were thereby apprised that no part of the ground embraced by Newbill’s notice was open to location by them, and their act in including a part of that ground was therefore nugatory.
“It is suggested that the act of Parks, Wallace and Farrell in marking the exterior boundaries, of the Red Jacket claim, on the 12th of April, was unavailing, because one of those corners was established within the boundaries of tbe Mammoth claim, as established by Warden and Yager on the 6th of April. To affirm that position would be to affirm that the perfecting of the right initiated by Newbill on the 26th of March could be arrested and defeated by the illegal and void act of Warden and Yager in embracing within the boundaries of the Mammoth claim ground not at the time subject to location. I think it clear that the defendant, Waterloo Mining Company, is entitled to that portion of the mining ground in dispute that is embraced by both the Red Jacket and Mammoth locations, and that complainant, Doe, has no right thereto nor interest therein. ” .
In 1894 the Supreme Court of Oregon, in Patterson v. Tarbell. 26 Or. 29, 37 Pac. 76, was called upon to pass upon the right to the possession of certain surface ground within the boundaries of the Collateral Quartz Mining Claim, located and owned by plaintiff, and the Palmer Quartz Mining Claim, located and owned by the defendant. Tarbell was prospecting within the limits of the Virtue mining claim, by permission’ of the owner of the latter claim. His object was to trace the new veins if he could, to the adjoining public lands, with a view of locating a claim. He discovered a spur which he traced to its intersection with a gold-bearing vein of quartz upon unoccupied land. From February, when he was prospecting, until April, he continued his work at intervals, for the purpose of determining the course or strike of the lead
“Requiring the discoverer of a mine to proceed diligently to complete his location, without waiting to trace the course or strike of the vein or lode, may in some instances work an apparent hardship; but until the matter is provided for by some local rule or regulation it is better, whatever the effect may be in particular cases, that the rule should be settled, and thus prevent as far as possible the uncertainty in titles to mining claims, and the strife and litigation among miners,*132 which would necessarily follow if the discoverer is allowed an indefinite time in which to develop his lode or vein, which, in many instances, would require much time and labor and a large expenditure of money. If, during such development or exploration, he is allowed to hold a floating grant to surface ground six hundred by fifteen hundred feet in size, with the right to definitely locate the same as he may subsequently determine, it would create great uncertainty in mining titles, increase litigation, and often defeat the purpose and object of the law, throwing open the mining lands of the country to occupation and purchase. Nor do we find anything in the authorities cited by the defendants in conflict with the rule which we have suggested. The decisions in the cases of Iron Silver Min. Co. v. Elgin Mining & Smelting Co., 118 U. S. 196, 6 Sup. Ct. 1177; and Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, were both made under the law of Colorado, which allows the discoverer a specified time for exploration before marking the boundaries of his claim. ’ ’
This case follows the California rule in Newbill et al. v. Thurston, supra, but it undoubtedly conflicts with the decision of Judge Ross in Doe v. Mining Co., supra, and with Patterson v. Hitchcock, (decided in 1877) 3 Colo. 533, but, so far as it bears upon the case at bar, by implication it affirms the views that, where there is a State law allowing the discoverer a specified time for exploration before marking the boundaries of his claim, he will be protected in his possession until he has complied with the State statute.
The last decision which we have been able to find in point is the appeal of Doe v. Waterloo Mining Co. to the Circuit Court of Appeals (17 C. C. A. 190, 70 Fed. 155). The opinion of the Court is by Judge Knowles, whose opinions upon questions of mining law, as recorded in the earlier Montana Reports, and in later years in the Federal Reports, have always been regarded with very high respect by the profession. After recapitulating the facts connected with the discovery and location by Newbill, as heretofore set forth, the learned Judge goes on to say:
Judge Knowles also discusses proof of a custom in a particular mining district, allowing a discoverer of a mineral-bearing vein 20 days after his discovery in which to fully bom
Lindley, in his valuable and highly approved work on mines, discusses the conflicting rulings in the Newbill Case, but approves of the Federal decisions, as according to the spirit of the law as interpreted by the Supreme Courts of Colorado and of the United States. He says: “To hold that the miner, as soon as he discovers a lode, must immediately stake the territory which he is entitled to claim, in order to-protect it from invasion and claims of other persons, would bean unreasonable, if not impossible, requirement.” (Section 339.)
He also lays it down that, where the statutes require preliminary work in order to define and describe the claim located,, the first discoverer “must be protected in the possession of the claim until sufficient excavations and development can be made so as to disclose whether a vein or deposit of such richness exists as to justify the work to extract the metal.” He sums up the logical consequence of the rules established by the case of Erhardt v. Boaro, and the later Federal decisions which have followed that decision, in the following language:
“The effect of this rule is practically to reserve, after the discovery and during the statutory period allowed for perfecting the claim, a surface area circular in form, the radius of*135 which may be the length claimed on the discovered lode, within which area the location may be ultimately made. Such is the manifest intent of the rule. This was the custom under the act of 1866. The miner posted his notice, claiming so many linear feet on the vein; and under the law as then interpreted, prior to fixing the situs of his lode, by filing a diagram for patent purposes, he might follow the vein wheresoever it ran, to the length claimed. When he filed his diagram, and inclosed his lode within surface boundaries, his right to pursue the vein on its course ceased, when it passed out of his surface lines.
“Under the existing state of the law, the location must be marked within a certain period of time, whereupon the locator’ s rights become definitely fixed and confined, except as to the extralateral right, to his marked boundaries. Until this is doné, however, and within the prescribed period, his right to be protected to the extent heretofore stated is well settled. ’ ’ (Section 339.)
The decisions of the Supreme Court of the Territory and of the State rendered prior to the enactment of the statutes which require development work before boundaries are to be defined cannot control the present condition of the law. It is true, we think, that one of the objects in requiring a location to be marked upon the ground is to fix the claim, and to prevent floating or swinging, so that those who are in good faith looking for unoccupied ground may know exactly what has been appropriated; and we thoroughly agree with the principle announced in Hauswirth v. Butcher, 4 Mont. 299, 1 Pac. 714, that the provisions of the law designed for the attainment of this object are very important, and ought not to be frittered away by construction; but, on the other hand, it is of equal importance that the miner have ample opportunity to perfect his mining location, in order that he may be protected in the full enjoyment of the rights accorded to him by the Federal statutes. And it was for the purpose of affording the full enjoyment of these rights that the State statutes were passed, merely postponing the necessity for definition by marking the
The distinction between the notice of discovery or notice of location required to be posted on the claim by Section 3610, and the declaratory statement required to be filed for record by Section 3612, is a substantial one, easily understood when the purpose of each is kept in mind. The notice of discovery should be, and usually is, posted immediately at the discovery hole, and often before the discoverer can possibly survey or even measure his ground. It is often done before even specific bearings are known. It is a simple announcement, and meant only to be a simple notice of a discovery, and of an intention to claim the vein discovered, and, by posting it, the discoverer finds an easy and quick way of announcing his claim. Afterwards, though, when an opportunity is had to follow the vein on its strike, then the boundaries must be marked, and the claim must be described by reference to natural objects or permanent monuments. Then it is, too, but not before, that the evidence of the location must be pre. served, by recording the declaratory statement containing such description of the location with reference to some natural object or permanent monument as will identify the claim.
The notice of location is a protection to the discoverer during the process of location. ‘ ‘The record of a mining claim, ’ ’ says Judge Ross in Gird et al. v. Cal. Oil Co., 60 Fed. 531, ‘ ‘when one is required, is intended to contain a more exact and specific description of the claim than the notice posted upon it.” (Gleeson v. Mining Co., 13 Nev. 465.)
But respondents’ counsel say, even if this be the law generally, yet in this case, plaintiffs having described their loca
In Book v. Justice Mining Co., 58 Fed. 106, a claim was described as beginning at the southwest boundary of the West Justice and lying north of the Ennis mine. It was argued in the Circuit Court of the United States that the locations were invalid because notices were posted that did not correctly describe the lode.. Judge Hawley said:
“In construing notices of this character, where, under the mining rules and local regulations or State laws, such*138 notices are required to be posted upon the ground, the courts are naturally inclined to be exceedingly liberal in their construction. Such notices are often drawn by practical miners, unaccustomed to legal forms and technical phraseology; hence-the language used in the notices is often subject to more or less criticism by counsel learned in the law, and engaged in preparing documents in legal shape and form. Then, again, locations are often made without any accurate knowledge of the true course and directions which a compass would readily give, and mistakes in the notice as to the direction and course of the ground located often occur. But such mistakes do not invalidate the location. Positive exactness in such matters-should never be required. It is the marking of the location by posts and monuments that determines the particular ground located. ’ ’
In that same case the location notice described the claim as extending 1,500 feet in a northerly direction. That was a mistake so far as the direction was concerned, as true north would have carried the line over and across another mine, instead of along the proper line, but the Court said:
“The word ‘northerly,’ under such circumstances, conditions and surroundings, should not be interpreted as meaning due north. It includes and may mean any meridian line or course between a due north and northwest, and is defined and made certain by the posting of the stakes or the building of the monuments at the corner’s of the locations, or along the lines thereof. Such stakes or monuments would control the courses specified in the notice. ’ ’. ( West Granite Mountain Min. Co. v. Granite Mountain Min. Co., 7 Mont. 356, 17 Pac. 547; Gamer v. Glenn, 8 Mont. 379, 20 Pac. 654.)
The respondents’ counsel, in their brief, tell us that the. court was impressed with the bad faith of these plaintiffs; but, there is nothing in the record which informs us that the court, considered that question at all, and we cannot presume that, they acted in other than good faith.
To extend the discussion of these questions would be useless. The law is too well settled to be disturbed at this late;.
If the questions which we have discussed were res integra, we should be disposed to take a view of the Federal statute (Section 2324) differing from the rule of Erhardt v. Boaro, supra, and to agree with the California and Oregon cases cited, which interpret the law as requiring an immediate marking of the location on the ground, so that the boundaries can be readily traced, or that a possessio pedis be had until they can be so marked within a reasonable time. There is a great deal to be said in support of the argument that Congress never meant to allow the discoverer to stop his work, leave his claim and postpone marking his boundaries for any period of time. The effect of the present construction is to give advantages to the discoverer beyond what the statute seems to fairly contemplate; and yet, if the right to postpone the marking of the boundaries for 90 days exists, there is no escape from the conclusion that the right to swing in good faith during that time goes with it. This is so because the reason for allowing the right to postpone is to definitely ascertain the strike, so that the discoverer may secure the benefit of his location before marking. Therefore where the discoverer gives as he must under the State statute the general course of his vein-in his discovery notice and, notwithstanding those courses, he can postpone marking the ground for 90 days thereafter, so that the boundaries of his claim may be traced, it should necessarily follow that, if the course given in the notice posted is not the true course of the lode as ascertained, he may swing his claim so as to iuelude within his boundaries ground that was not embraced in the notice of discovery, provided it includes the true course of the vein claimed. This right to
The application of what we have said necessarily leads to the conclusion that the defendants in this case had no right to embrace in the location of the Yukon any of the ground included within the boundaries of the Never Sweat, as the plaintiffs defined said boundaries within the period of 90 days .after their discovery of the Never Sweat.
The judgment is reversed and the cause remanded with di.rections to grant a new trial.
Reversed and rema/nded.